FAMILY LAW – PARENTING ISSUES – Where wife seeks husband have no contact with children – Where husband seeks equal shared parental responsibility and eventually shared care – Allegations of family violence – Husband's threatening and erratic behaviour throughout proceedings – Where husband mislead health professionals – Finding that contact between children and husband will adversely affect wife and her parenting ability – Held not in best interests of children to have contact with husband

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant
Respondent: Mr J Hedges
Independent Children's Lawyer : Mr A Mackey

Solicitors:

Applicant: Self-Represented Litigant
Respondent: Helen Turner Barrister and Solicitor
Independent Children's Lawyer : Legal Aid WA

Case(s) referred to in judgment(s):

A v A (1998) FLC 92-800
B & B (1993) FLC 92-357
Beach & Stemmler (1979) FLC 96-92
Champness & Hanson (2009) FLC 93-407
Chapman & Palmer (1978) FLC 90-510
Collu & Rinaldo [2010] FamCAFC 53
Fitzpatrick & Fitzpatrick (2005) FLC 93-227
Flanagan & Handcock [2000] FamCA 150
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Hamish & Brighton [2014] FamCAFC 242
Hungerford & Tank [2007] FamCA 637
Irvine & Irvine (1995) FLC 92-624
Jets & Maker (No 2) [2011] FMCAfam 1473
Jurchenko & Foster [2014] FamCAFC 127
K & K [2003] FamCA 1358
M & M (1988) FLC 91-979
M & S (2007) FLC 93-313
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
McLay & McLay (1996) FLC 92‑667
Mills & Watson (2008) 39 Fam LR 52
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Mulvaney & Lane (2009) FLC 93-404
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Re Andrew (1996) FLC 92-692
Re L, V, M & H (Children) (2000) EWCA Civ 194; [2000] 2 FLR 334
Re M (Contact Violent Parent) [1999] 2 FLR (UK) 321
Re W (Sex Abuse Standard of Proof) [2004] FamCA 768
Reynolds & Sherman [2015] FamCAFC 128
Russell v Close (Appeal SA45 of 1992, unreported judgment delivered 25 June 1993)
Saxena & Saxena (2006) FLC 93-268
Sayer & Radcliffe (2012) 48 Fam LR 298
Sedgley & Sedgley & Cahill (1995) FLC 92-623
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) FLC 93-345

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1Before the Court are the competing applications of the parties for final orders in relation to their children.

Abbreviations and other terms used

2In these Reasons, and unless otherwise indicated:
a)all statements of fact comprise findings of fact;
b)I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Finton & Kimble

Details

AGLC: Finton & Kimble [2017] FCWA 106
Case: [2017] FCWA 106
Decision Date: 24 AUGUST 2017

CaseChat Overview and Summary

The case before the court involved a dispute between a husband and wife over parenting arrangements for their children. The wife sought an order that the husband have no contact with the children, while the husband sought equal shared parental responsibility and shared care of the children. The case was heard in the Family Court of Australia. Throughout the proceedings, the husband exhibited threatening and erratic behaviour and was found to have misled health professionals.

The primary legal issue before the court was whether it was in the best interests of the children to have contact with the husband. The court was required to consider the allegations of family violence and the impact of the husband's behaviour on the wife and her parenting ability. The court also had to assess whether the husband's behaviour had any impact on the children's relationship with him. Ultimately, the court had to decide whether contact between the children and the husband would adversely affect the wife and her ability to parent the children.

In its reasoning, the court found that contact between the children and the husband would adversely affect the wife and her parenting ability. The court accepted the wife's evidence that the husband had engaged in threatening and erratic behaviour towards her throughout the proceedings. The court also found that the husband had misled health professionals and had not acted in good faith. The court considered these factors in determining that it was not in the best interests of the children to have contact with the husband. The court found that the husband's behaviour had a negative impact on the wife's ability to parent the children and that contact with the husband would further undermine her parenting ability.

As a result, the court made orders that the husband have no contact with the children and that the wife have sole parental responsibility for the children. The court also made orders that the husband pay child support to the wife. The court's decision was based on the best interests of the children and the need to protect the wife from further harm.

Orders